Lawyered up

Elections | This year's post-election calm in the courts may stem from a pre-election litigious roar, but battles over voter fraud continue

Issue: "Darfur," Nov. 25, 2006

Prior to the 2000 presidential election, before "hanging chads" and "butterfly ballots" invaded the country's popular vernacular, most U.S. citizens believed in the security of the national election process: one person, one vote. Democracy seemed simple and safe.

But in the wake of that critical night six years ago-and subsequent disputes at the gubernatorial and presidential levels in 2004-Republicans and Democrats geared up for a bitterly contested midterm election Nov. 7. Both parties positioned thousands of lawyers at critical polling locations and call centers throughout the country. The Justice Department prepared for the worst, too, deploying an unprecedented 850 officials to monitor the process. Many election workers predicted that new electronic touch-screen machines would foster a whole new wave of legal complaints and contested outcomes that might bog down the country with undetermined races for weeks or months after Election Day.

Yet, as the dust settled in the early morning hours of Nov. 8, surprisingly few threats of litigation emerged. Tight Senate races in Montana and Virginia remained undecided as numbers from late-reporting precincts and absentee ballots trickled in, but the near absence of voting irregularities in those states rendered potential recounts or court challenges unlikely. Republican incumbents Conrad Burns and George Allen conceded defeat soon after.

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All 36 gubernatorial races were likewise decided within days of the election. Several razor-close congressional races may still yield drawn-out battles to determine winners, but an undisputed Democratic takeover of the House has dropped such fights out of the national spotlight.

That Democrats seized control of the legislature without rousing significant GOP allegations of fraud has silenced far-left conspiracy theories of GOP-orchestrated corporate manipulation of elections. Such tacit admissions of fairness from both sides of the aisle may represent a turning point away from the recent proclivity to file lawsuits. Or maybe equally rabid and frequent election litigation now simply takes place before any votes are cast.

Judges throughout the country, including those from the nation's highest court, issued several critical decisions heading into November-some with the potential to alter outcomes in tight races. The Supreme Court ruled unanimously on Oct. 20 that Arizona could enforce a voter-passed proposition requiring voters to show identification at the polls. The high court explained, "Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."

Proponents of the new voter-ID requirements hailed the decision as a victory for more secure elections-one that might set precedent for numerous other states using or considering similar measures. The Help America Vote Act of 2002 mandates that all states require identification for first-time voters who registered by mail without verifying their identity. Two dozen states go beyond HAVA in asking for identification from all voters. Seven states require a photo ID.

Much debate exists over the impact of such stricter voting policies. Many conservatives believe they combat an ever-prevalent threat of fraud-one possible explanation for this year's decrease in court challenges. But such leftist organizations as the Association of Community Organizations for Reform Now (ACORN) and the Brennan Center for Justice argue that ID laws disproportionately burden minorities and the poor.

With support from ACORN and a variety of other local and national agencies, Brennan Center lawyers launched an assault on voter-ID laws and registration restrictions in the months leading up to the midterms. The New York--based law firm managed to procure preliminary injunctions against fraud protection measures in Ohio, Florida, and Washington state.

Wendy Weiser, deputy director of the center's Democracy Program, believes such victories ensured voting access for many Americans who might otherwise have stayed home Nov. 7. "Voting shouldn't be an obstacle course," she said. "There have been a lot of new laws across the country in the last year that make it harder for people to vote. People shouldn't face unreasonable administrative barriers."

Among the provisions the Brennan Center deems unreasonable are requirements that newly registered voters be matched against existing driver's license or Social Security rolls to confirm their identity and update any outdated information. An ongoing lawsuit in Washington state succeeded in suppressing such a measure for this election cycle and will likely make the change permanent when litigation resumes in 2007.

The Evergreen Freedom Foundation, a conservative think tank in the state, opposes that action and considers it part of a wide-reaching scheme to maintain the opportunities for fraud rampant in the past few elections. Jonathan Bechtle, director of the foundation's Citizenship and Governance Center, said the new voter-registration law has helped the state clean off about 70,000 improper names from the voter rolls in the last year. "Most of those are duplicate registrations," he said. "We have a major problem with that, and this law went directly to it."


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